Odiorne v. State

37 Tex. 122

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Ogden, J.

This is an appeal from a judgment final upon a forfeited bail bond. The sureties were served with a notice of the judgment nisi, and appeared at the next term of the court and filed their answer, setting up several causes why judgment final should not be rendered against them. The district attorney moved to strike out the answer, because the same was not sworn to, and for other cause. The motion was sustained, the answer stricken out, and judgment final entered. We think there is error in the ruling and judgment of the court, and for which the judgment must be reversed.

The statute does not require that the answer to a scire facias upon a forfeited bail bond shall in any case be sworn to, and especially when the matters pleaded in the answer are matters of record in the court, and of which the court ought to take judicial cognizance. The answer pleaded the insufficiency of the bail bond to support any judgment, and further, that the bond was not forfeited according to law. Either of these answers, if true, was a sufficient defense to the proceedings; while the truth or falsity of the answer was apparent on the record, and should have been inquired into by the court.

Article 2880, Paschal’s Digest, in prescribing the manner of forfeiting recognizances and bail bonds, says, the name of the defendant and his sureties shall be called distinctly at the door of the court-house; and the record and judgment nisi shows that the defendant only was called. The law was not complied with ■ in this particular, and the court should have set aside the judgment nisi upon the answer of the defendant and an inspection of the record. For these errors the judgment is reversed and the cause remanded.

Reversed and remanded.